Witchard v. United States of America

Filing 19

ORDER granting 16 Motion for Leave to File Excess Pages; denying 18 Motion for Preliminary Injunction. Signed by Judge Roy B. Dalton, Jr. on 12/12/2016. (VMF)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION
JOSEPH WITCHARD,
Petitioner,
v.

CASE NO. 6:16-cv-1254-Orl-37GJK
(6:14-cr-112-Orl-37GJK)

UNITED STATES OF AMERICA,
Respondent.
ORDER
This case is before the Court on the following matters:
1.

Respondent’s Motion for Leave to File Excess Pages (Doc. 16) is

GRANTED.
2.

Petitioner has filed a Motion for Preliminary Injunction (Doc. 18).

Petitioner asserts that he has established that the Government has covered up and
concealed the unlawful acts committed by its co-conspirators Jeffrey Seeger and David
Keith.

(Doc. 18 at 4).

Specifically, Petitioner argues that he has demonstrated that

there was no grand jury indictment returned or arrest warrant issued as evidenced by the
fact that the “falsified” arrest warrant was signed by a fictitious person, “J. Thigpen”.
(Id. at 1-7).
The Eleventh Circuit has fashioned a four-factor test for granting an injunction in
this Court:

To be entitled to injunctive relief, the moving party must establish
that (1) there is a substantial likelihood that he ultimately will prevail on
the merits of the claim; (2) he will suffer irreparable injury unless the
injunction issues; (3) the threatened injury to the movant outweighs
whatever damage the proposed injunction may cause the opposing party;
and (4) the public interest will not be harmed if the injunction should issue.
Cate v. Oldham, 707 F.2d 1176, 1185 (11th Cir. 1983) (citations omitted).

“The purpose of

. . . a preliminary injunction is ‘merely to preserve the relative positions of the parties
until a trial on the merits can be held.’”

United States v. Lambert, 695 F.2d 536, 539-40

(11th Cir. 1983) (quoting University of Texas v. Camenisch, 451 U.S. 390, 395 (1981)).
Therefore, “the relief sought in the motion [must] be closely related to the conduct
complained of in the actual complaint.” Edler v. Gielow, No. 3:08-cv-530-WS, 2009 WL
1660013, at *3 (N.D. Fla. June 15, 2009) (citing Devose v. Herrington, 42 F.3d 470, 471 (8th
Cir. 1994) and Penn v. San Juan Hosp., 528 F.2d 1181, 1185 (10th Cir. 1975)).

Furthermore,

“the persons from whom the injunctive relief is sought must be parties to the underlying
action.”

Id. (citing In re Infant Formula Antitrust Litig., MDL 878 v. Abbott Laboratories, 72

F.3d 842, 842-43 (11th Cir. 1995)).

“Because a preliminary injunction is ‘an extraordinary

and drastic remedy,’ its grant is the exception rather than the rule, and Plaintiff must
clearly carry the burden of persuasion.”

Lambert, 695 F.2d at 539 (quoting State of Texas

v. Seatrain International, S.A., 518 F.2d 175, 179 (5th Cir. 1975)).
Further, Plaintiff must comply with Local Rule 4.05 and 4.06 of the Rules of the
United States District Court for the Middle District of Florida and Federal Rule of Civil

2

Procedure 65 in drafting his motion.

These rules govern this Court’s decision as to

whether an injunction shall issue.
In this case, Petitioner has failed to comply with the Local Rules in drafting his
motion.

Additionally, Petitioner has failed to demonstrate that there is a substantial

likelihood that he ultimately will prevail on the merits of his claims or that he will suffer
irreparable injury if the motion for preliminary injunction is not granted.

Therefore,

because Petitioner has failed to meet his burden with respect to each of the factors
required for an injunction, it is hereby ORDERED that Petitioner’s Motion (Doc. 18) is
DENIED.
The Court will consider Petitioner’s accompanying Reply to the Government’s
Response to the 28 U.S.C. § 2255 Motion (Doc. 18) in the disposition of the § 2255 Motion.
DONE AND ORDERED in Orlando, Florida, this 12th day of December, 2016.

Copies to:
OrlP-1 12/12
Joseph Witchard
Counsel of Record

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