Osborne Associates, Inc. v. Cangemi et al

Filing 7

ORDER taking under advisement 3 Plaintiff's Motion for Temporary Restraining Order and Preliminary Injunction and Incorporated Memorandum of Law. See Order for details.Signed by Judge Marcia Morales Howard on 10/12/2017. (MMG)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
JACKSONVILLE DIVISION
OSBORNE ASSOCIATES, INC.,
d/b/a Generations Salon Services,
Plaintiff,
v.

Case No. 3:17-cv-1135-J-34MCR

SHERYL CANGEMI, et al.,
Defendants.
____________________________________/

ORDER
THIS CAUSE is before the Court on Plaintiff’s Motion for Temporary Restraining
Order and Preliminary Injunction and Incorporated Memorandum of Law (Doc. 3; Motion)
filed on October 11, 2017.
Upon review of the Motion, the Court notes that to the extent Plaintiff seeks a
temporary restraining order, Plaintiff has failed to comply with Rule 65, Federal Rules of
Civil Procedure (Rule(s)), and Local Rule 4.05, United States District Court, Middle
District of Florida (Local Rule(s)), which govern the entry of temporary restraining orders.
Rule 65(b) provides:
A temporary restraining order may be granted without written or oral notice
to the adverse party or that party’s attorney only if (1) it clearly appears from
specific facts shown by affidavit or by the verified complaint that immediate
and irreparable injury, loss, or damages will result to the applicant before
the adverse party or that party’s attorney can be heard in opposition, and
(2) the applicant’s attorney certifies to the court in writing the efforts, if any,
which have been made to give the notice and the reasons supporting the
claim that notice should not be required.

FED. R. CIV. PRO. 65(b). Likewise, Local Rule 4.05(b)(2) requires that the motion be
accompanied by affidavits or a verified complaint establishing the threat of irreparable
injury as well as showing “that such injury is so imminent that notice and a hearing on the
application for preliminary injunction is impractical if not impossible.”

Local Rule

4.05(b)(2).
Here, the Court finds that Plaintiff’s motion fails to satisfy the requirements of Rule
65(b) as well as the Court’s Local Rules. Nothing in the Motion suggests that Plaintiff’s
injury is so imminent that it would be “impractical if not impossible” to provide Defendants
with notice of the Motion and an opportunity to be heard as required for preliminary
injunctive relief. See Local Rule 4.05(b)(2). Nor does the Plaintiff state what “efforts, if
any, . . . have been made to give the notice and the reasons supporting the claim that
notice should not be required.” FED. R. CIV. PRO. 65(b)(1)(B).
Moreover, the substance of Plaintiff’s Motion speaks predominantly in terms of
seeking a preliminary injunction from the Court, see Motion at 12, 13, 14, with only
introductory, fleeting, or conclusory references to a temporary restraining order. Id. at 1,
3, 15. Additionally, in making its argument for why the Court should grant injunctive relief
in its favor, Plaintiff relies on rules which relate to preliminary injunctions rather than
temporary restraining orders. Id. at 1 (citing to Federal Rule 65(a) (relating to preliminary
injunctions) and Local Rule 4.06 (same)); 2 (same); 4 (same). 1 Therefore, the Court
construes Plaintiff’s Motion as one solely seeking entry of a preliminary injunction, and
not for a temporary restraining order.

1 The Court acknowledges that in Plaintiff’s discussion regarding Rule 65(c)’s bond requirement, the
Motion does reference Local Rule 4.05. See Motion at 15. However, aside from this single reference to
Local Rule 4.05 as it relates to the bond requirement, see Local Rule 4.05(b)(3), nothing else in Plaintiff’s
Motion suggests that Plaintiff is seeking a temporary restraining order.

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Finally, it appears that Plaintiff has not yet effected service of process on
Defendants in accordance with Rule 4, Federal Rules of Civil Procedure (Rule(s)).

Accordingly, it is

ORDERED:

1.

Plaintiff’s Motion for Temporary Restraining Order and Preliminary
Injunction and Incorporated Memorandum of Law (Doc. 3), which the Court
construes as a Motion for Preliminary Injunction and Incorporated
Memorandum of Law, is TAKEN UNDER ADVISEMENT.

2.

Plaintiff shall promptly effect service of process on Defendants in
accordance with Rule 4, and also shall serve Defendants with a copy of the
Motion and all materials filed in support thereof, as well as a copy of this
Order.

3.

Immediately upon accomplishing service of process, Plaintiff shall file proof
of such service in accordance with Rule 4(l).

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4.

Once Plaintiff has filed proof of service, the Court will set a briefing
schedule, as well as a hearing on Plaintiff’s Motion for Temporary
Restraining

Order

and

Preliminary

Injunction

and

Incorporated

Memorandum of Law (Doc. 3).

DONE AND ORDERED in Jacksonville, Florida, on October 12, 2017.

Lc26
Copies to:
Counsel of Record
Pro Se Parties

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