Stelor Productions v. Silvers, et al

Filing 8

Stelor Productions v. Silvers, et al

Doc. 8

Case 9:04-cv-80954-DTKH

Document 8

Entered on FLSD Docket 11/03/2004

Page 1 of 4 Nov 2 2004

U N I T ED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA STELOR PRODUCTIONS, INC., a Delaware corporation, Plaintiff, v. Magistrate Judge James M. Hopkins STEVEN A. SILVERS, a resident of Palm Beach County, Florida Defendant. _________________________________ CASE NO. 04-80954-CIV-HURLEY

D E F E N D A N T S ' MOTION TO STRIKE "EM E R G E N C Y " LABEL O F PLAINTIFF'S MOTION FOR PRELIMINARY INJUNCTION Defend ant Steven A. Silvers moves this Court for entry of an order striking the Aemergency@ label of Plaintiff=s Motion for Preliminary Injunction for Plaintiff=s failure to exp lain the necessity of an expedited procedure. In support of this motion, Defendant states as follows: 1. On October 25, 2004, Plaintiff filed an Aemergency@ motion for preliminary

injunction in which it seeks to enjoin Defendant from allegedly breaching Defendant=s contractual obligations. Plaintiff, however, deemed its motion an Aemergency@ without

explaining what the emergency is. 2. Local Rule 7.1(E) B which governs Emergency Motions B provides that: The Court may, upon written notice and good cause shown, waive the time requirements of this rule and grant an immediate hearing on any matt er requiring such expedited procedure. The motion shall set forth in detail the necessity for such expedited procedure. Plaintiff has not shown any "good cause" good cause for expedited treatment of its motion, and has failed to describe the "emergency" that requires expedited procedure. Instead, Plaintiff mer ely discusses the criteria it must demonstrate to obtain a preliminary injunction. In doing so,
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K o z y ak T ro p in & T h r oc km o r to n , P .A . 2525 Ponce de Leon, 9th Floor < Coral Gables, Florida 33134 < 305-372-1800

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Case 9:04-cv-80954-DTKH

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Plaintiff seems to blur the requirements for a preliminary injunction and the requirements of an emergency motion under the Local Rules. The United States Court of Appeals for the Eleventh Circuit holds that Aa preliminary injunction is an extraordinary and drastic remedy not to be granted unless the movant clearly e st ablished the burden of persuasion@ as to each of the four prerequisites. 1 McDonald=s Corp. v. Robertson, 147 F.2d 1301, 1306 (11th Cir. 1998); see also AutoNation, Inc. v. O=Brien, No. 0460767-CV, 2004 WL 2293943, at *2 (S.D. Fl. Oct. 6, 2004) (Aa preliminary injunction is an extraordinary remedy which should only be granted if movant carries the burden of persuasion on its claims@). While Plaintiff has a high hurdle to overcome for preliminary injunctive relief, there is nothing inherent in the motion that automatically calls for it to be treated as an emergency motion under Local Rule 7.1(E). 3. Without any detail of the "emergency" situation - as required by the local rules -

Plaintiff's motion does not warrant expedited treatment by the Court. Defendant should be allowed an opportunity to respond to Plaintiff's motion in the ordinary course or within such ot her time established by the Court.2 Accordingly, Defendant requests that this Court enter an

offer striking the "emergency" label of Plaintiff's motion for preliminary injunction, and allowing this matter to procedure under the time frame contemplated by local rules. Respectfully submitted this 2nd day of November, 2004.

To obtain a preliminary injunction, Plaintiff must demonstrate (1) a substantial likelihood of success on the m e ri t s; (2) a substantial threat of irreparable injury if the injunction is not granted; (3 ) that the threatened i n j u r y to Plaintiff outweighs the harm an injunction may cause the Defendant; and (4) that the injunction would not disserve the public interest. See Café 207, Inc. v. St. Joh ns County, 989 F.2d 1136, 1137 (11th C i r . 199 3).
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In a contemporaneous motion, Defendant is requesting additional time to respond to Plaintiff=s motion, an d for discovery.
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K o z y ak T ro p in & T h r oc km o r to n , P .A . 2525 Ponce de Leon, 9th Floor < Coral Gables, Florida 33134 < 305-372-1800

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s/ Gail A. McQuilkin Gail M. McQuilkin (FBN: 969338) Kenneth R. Hartmann (FBN: 664286) KOZYAK TROPIN & THROCKMORTON, P.A. 2525 Ponce de Leon, 9th Floor Coral Gables, Florida 33134 T: 305-372-1800 / F: 305-372-3508 ==================================================================== CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing was served this 2nd day of November, 2004, via facsimile and first class mail on the following: Stanley A. Beiley Sacher Zelman Van Sant Paul Beiley Hartman Rolnick & Waldman, PA 1401 Brickell Avenue, Suite 700, Miami, FL 33131 Fax: [phone] Laurence R. Hefter Finnegan Henderson Farabow Garrett & Dunner, LLP 1300 I Street, NW, Washington, DC 20005 Fax: [phone]

s/ Gail A. McQuilkin
/24 57 31 .2

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K o z y ak T ro p in & T h r oc km o r to n , P .A . 2525 Ponce de Leon, 9th Floor < Coral Gables, Florida 33134 < 305-372-1800

Case 9:04-cv-80954-DTKH

Document 8

Entered on FLSD Docket 11/03/2004

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UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA STELOR PRODUCTIONS, INC., a Delaware corporation, Plaintiff, v. Magistrate Judge James M. Hopkins STEVEN A. SILVERS, a resident of Palm Beach County, Florida Defendant. __________________________________ ORDER GRANTING DEFENDANT'S MOTION TO STRIKE "EMERGENCY" LABEL OF PLAINTIFF'S MOTION FOR PRELIMINARY INJUNCTION THIS CAUSE came before the Court on Defendant's Motion to Strike the "Emergency" Label of Plaintiff's Motion for Preliminary Injunction. The Court, having reviewed the pleadings and being otherwise duly advised in the premises, has hereby, ORDERED and ADJUDGED that the motion is GRANTED. The "Emergency" label of Plaintiff's Motion for Preliminary Injunction is hereby stricken. Defendant shall respond to the motion in the ordinary course or within a time frame established by the Court. DONE AND ORDERED this _____ day of November, 2004. CASE NO. 04-80954-CIV-HURLEY

________________________________________ The Honorable Daniel T. Hurley United States District Court Judge

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